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Monday, March 5, 2012

Polish Frankens........ The Legal Side Of Things

I LOVE the fact that all these polish loving artists (Lynnderella, Pam Heil, etc) are creating the AMAZING products that they are. There are TONS of new polish brands people are frankening and selling all over Etsy and on private nail blogs. I think it is totally great. But a few things have me wondering.......

Many a frankening artist (as I will call them from here on out) are making dupes and copies of INSANELY popular polishes such as Lippmanns and Clarins 230. That seems fine. And some have gotten so good at creating original polishes that THEY are having dupes made. I was just contacted by someone wanting me to review a polish they have just made. It apparently takes inspiration from another home made polish I already have and they wanted to know if I would review and compare it. I kindly said no thank you. Not that I find anything WRONG with duping necessarily.. Revlon does it ALL the time, Nubar (Jeans) did it. Who was it who said "Imitation is the sincerest form of flattery"? I do not like when an ENTIRE collection is blatantly copied though I feel like I was in the minority with that.

So when Nubar Jeans chose to copy the entire Chanel Collection the overall thought (though I did and still disagree) was that it was great to have a cheaper option. When it comes to home made frankens though, it seems that many of those who were ok with Revlon and Nubar aren't necessarily also OK with this. Why is that? Is it that we expect more out of individual polish lovers than we do big corporations? I don't know.

I am not taking a side or a judgement, but I find it curious. I have recently seen two different polish creators discuss legalities of it, whether there is financial recourse in terms of royalties etc. Now I wonder if they TRY to pursue it (I don't know that they will) if they have realized the fact that the polishes we are all buying on Etsy are technically illegal. Technically they need to be approved by the FDA for sale in both Canada & The United States. The following blurb is taken off the American FDA website.

How Nail Products Are Regulated

Nail products for both home and salon use are regulated by the Food and Drug Administration. Under theFederal Food, Drug, and Cosmetic Act (FD&C Act), these products are cosmetics [FD&C Act, section 201(i)].

By law, nail products sold in the United States must be free of poisonous or deleterious (harmful) substances that might injure)." users when used as labeled or under the usual or customary conditions of use (see Key Legal Concepts: Interstate Commerce, Adulteration and Misbranding). Many nail products contain potentially harmful ingredients, but are allowed on the market because they are safe when used as directed. For example, some nail ingredients are harmful only when ingested, which is not their intended use.

The labels of all cosmetics, whether marketed to consumers or salons, must include a warning statement whenever necessary or appropriate to prevent a health hazard that may occur with use of the product (21 CFR 740.1). Cosmetics sold on a retail basis to consumers also must bear an ingredient declaration, with the names of the ingredients listed in descending order of predominance. The requirement for an ingredient declaration does not apply, for example, to products used at professional establishments or samples distributed free of charge. However, the requirement does apply if these products are also sold at retail, even if they are labeled "For professional use only" (see Cosmetic Labeling: An Overview"

With the sudden mass popularity of certain brands it seems the arena of home frankens is becoming massive. These are not issues that have ever come up before (its a very recent and new trend - home frankening) and there are a lot of learning curves.

I am personally a MASSIVE fan of Girly Bits, Nerd Lacquer, many of Lynnderella's polishes as well as a few others. I personally do not give two figs if they are FDA approved or not, but I fear the affects of all these "inspired by" polishes may lead to legal action that could potentially destroy the very brands I love most.

I am not sure what I gained from writing this post other than to ask what are your opinions? Do you think duping a home made franken brand is different than a Lippmann or Chanel? Do you think its the same thing? Would a person duping a certain polish stop you from buying others by them? I am really curious as to your thoughts. I have been thinking about this a lot recently and am very torn on the issue.

I don't think it is fair to draw the line in the sand by the size of the company.... that is I don't think it is fair to say that it is OK for people to dupe big companies but not small independent polish makers. Duping or copying is the nature of capitalism. How many of us have ever bought knock off purses... or jewelry... shoes?... clothing...? why is this OK but not nail polish? I agree with Kimberly that as long as you are not trying to market the polish as the original but you are making it clear it is an alternative or dupe or whatever word you want to use then why not? I don't think it is taking money out of other people's pockets. I think the market is big enough that people will still want all the various polishes that exist out there. Further my problem with all this talk of "legal action" is that nobody that makes their own polishes has rights to the ingredients that are being used. None of us own the glitter. We buy it from sellers. Why should only one person or company have access to that ingredient? That doesn't seem fair. Further how many of us buy, not home made.. made from scratch polishes, but true frankens that are made by using pre-existing polishes. Could this not be considered a form of theft as well? mixing Revlons and Zoyas and OPIs to create other colors.... should those companies get royalties then too? We're making polish not reinventing the wheel. While a polish I have made might seem like a unique and totally new polish could have been made by someone on the other side of the globe a year ago. There is a limit to the truly uniqueness. My personal thought is that all of this has gotten out of hand. I enjoy the indie homemade polishes like nerd lacquer and Pam's Girly Bits and Pretty and Polished .... I won't stop buying them just because they may be similar to one another because when it comes down to it none of them are exactly the same and they are each beautiful in their own right. Just my opinion 8) and I very much enjoyed your post on this topic. I think you made some interesting points and really have the beginnings of an interesting discussion.

just a final thought.... you are right ... way could this do to the polish community as a whole? Could this have the potential to shut down all those independent polish makers we love so much? That would be a sad day indeed.

you do make an intriguing and new standpoint on the fda testing. i would assume that even if your base and glitters were individually tested by the suppliers, you would still need your own finished product tested, correct? and ive never thought about it, but none of these indies ever supply ingredient lists. some don't even list ingredients on their listing page! not that i care, I just hope if someone decides to take legal action in this entire fiasco currently playing out, that they have dotted all of their i's.

Good point about the FDA testing-- that hadn't even crossed my mind. I don't create or sell frankens, but I do appreciate and love the ones that are out there and available. I can certainly imagine that any legal action taken could shut down the whole indie polish branch that has sprung up. It would solve one problem, of course, but would certainly be a sad day for everyone else.

I guess I sort of agree with Marissa S-- it sucks, but copying/duping is alive and well in our (in my case, the US) economy today. Everything from shoes, dresses, purses and nail polish, and from well-known and generally well respected companies. For example, Steve Madden knocking off YSL or Louboutin shoes or Revlon knocking off Lippman. So while I feel for the people involved and think it definitely sucks to be copied-- of course it does-- you had a brilliant idea and then someone else takes it and markets it as their own, I'm not sure how much recourse they can get.

In this case, I suppose, it hurts even more because this isn't a huge business and the creative process is time consuming and personal. It also sucks because the knock off is too clearly just a knock-off, no personal twist. However, I'm not sure they have any recourse. You can't copyright a color, or probably even a mix of colors.

I am curious about Nerd Lacquer, however, because she makes her polishes in the US and sells them both in the US through her Etsy page and in Canada through Harlow & Co. Presumably her polishes have to be checked by the FDA when they entire Canada for sale. Right? I wonder how they work that.

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About Me:

Hi! I'm Shayna! A bio-pharmaceutical student & full time job in the travel industry give me little time to play, but when I do, its all about makeup and nail polish! Follow my blog as I chronicle my journey in to the world of beauty!